Kaiser Permanente Ordered to Halt Denial of Care

The written order, as filed, says that Kaiser denied these services with written letters of denial to at least 70 enrollees since 2009. An agency spokeswoman said on Tuesday that the number is now up to 106. Kaiser has at least eight million enrollees in the state.

The DMHC subjected those 70 cases to an independent medical review for evaluation of medical necessity of the requested therapy services. That review found that in excess of 75% of the cases the services indeed were medically necessary, and 10% were not. The remainder are still under review.

"The DMHC is taking this action to ensure Kaiser follows the law," DMHC's chief of enforcement, Anthony Manzanetti, said in a public statement. The order says that Kaiser's actions violate eight provisions of state law, health and safety codes or codes of regulation.

John Nelson, a spokesman for Kaiser Permanente, responded to a HealthLeaders Media query by e-mail:

"We are surprised and disappointed with the DMHC's announcement. We have been in discussions with the Department over these services and were already scheduled to continue our discussions later this week.

Michael F. Cannon (2/29/2012 at 12:30 PM)
There Is No Objective Definition of 'Medical Necessity' Posted by Michael F. Cannon California regulators are coming down on Kaiser Permanente. According to HealthLeaders Media, the regulators reviewed a batch of coverage denials and "found that in excess of 75% of the cases the services indeed were medically necessary, and 10% were not." Indeed? Now seems like a good time to post what University of Tennessee law professor Haavi Morreim wrote about "The Futility of Medical Necessity" in Regulation: "Clinical artificiality The ill fit between "necessity" and ordinary medical care is immediately obvious in the question facetiously bandied about when health plans first considered what to do about a recently approved drug for male impotence: How often per month (per week? per day?) is drug-assisted sexual intercourse 'medically necessary'? "As typified by that case, most medical decisions do not post clear choices of life versus death, nor juxtapose complete cures against pure quackery. Rather, the daily stuff of medicine is a continuum requiring a constant weighing of uncertainties and values. One antibiotic regimen may be medically comparable to and much less expensive than another, but with slightly higher risk of damage to hearing or to organs like kidneys or liver. For a patient needing hip replacement, one prosthetic joint may be longer-lasting but far costlier than an [INVALID]native. Of two equally effective drugs for hypertension, the costlier one may be more palatable because it has fewer side effects and a convenient once-a-day dosage. "Across such choices, it is artificially precise to say that one option is 'necessary' [INVALID] with the usual connotation of 'essential' or 'indispensable' – while the other is 'unnecessary' [INVALID] with the usual connotation of 'superfluous' or 'pointless.' Various options have merits, and often no single approach is the clear, 'correct' choice. A given option might be better described as 'a good idea in this case,' 'reasonable, given the cost of the [INVALID]native,' 'probably better than the [INVALID]native, given a specific goal,' 'about as good as anything else,' or 'not quite ideal, but still acceptable.' "In many cases, the real question is whether a particular medical risk or monetary cost is worth incurring in order to achieve a desired level of symptomatic relief or functional improvement, or to reduce the risk of an adverse outcome or a missed diagnosis. A huge array of treatments fits that description: more or less worthwhile, but the patient will not die without it and other [INVALID]natives (that might have some drawbacks) exist. [Emphasis mine.] "More broadly, concepts like necessity, appropriateness, and effectiveness can only be defined relative to a goal. For example, antibiotics are not clinically effective for all illnesses; they are effective against bacteria but, barring placebo effect, they are ineffective against viruses. Hence, it makes no sense for a physician to prescribe antibiotics to eradicate a viral infection. However, if the goal is to placate a relentlessly demanding patient who insists on antibiotics for his viral infection, the prescription may indeed serve that latter aim – which is probably why so many physicians write so many antibiotic prescriptions for viral illnesses. "Choices in this realm require a level of clinical complexity that is not reflected in simplistic notions like necessity, and that should not be hidden under blanket categories connoting a façade of precision. It would be far better to acknowledge that, across a broad spectrum of such choices and trade-offs, it is legitimate for people to come to different conclusions about what sort of price is worth paying, medically and financially, to achieve specific goals. To presume that a medical intervention is objectively either necessary or unnecessary belies the legitimacy of such variation in human goals and values." So the question becomes: who will do a better job of deciding whether and when hip replacements or antibiotics or Viagra are "medically necessary?" Regulators? Or patients choosing health plans (in part) based on how those plans define medical necessity? Michael F. Cannon ? February 29, 2012 @ 11:42 am